The Board argued that this conduct constituted both unprofessional conduct and professional misconduct warranting cancellation of registration and disqualification from reapplying for registration and providing health services for 3 years.

• The Tribunal is satisfied that ground 1 is made out, and that Mr Szkup's conduct amounted to professional misconduct.
• The Tribunal is satisfied that grounds 2, 3 and 4 are made out and amount to unprofessional conduct.
• In these circumstances, it is appropriate to order the sanctions proposed by the Board.

Health Practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional Misconduct - Failure to comply with conditions of registration

Health Practitioners - Complaint by the Nursing and Midwifery Board of Australia - Unprofessional Conduct - Unlawful or improper behaviour outside of workplace, Criminal Conviction, Failure to notify Board of convictions or charges

Health Practitioners - Complaint by the Nursing and Midwifery Board of Australia - Registration Cancelled, Disqualified from applying for registration for three years, Prohibited from providing any health service for three years

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 130, 196

South Australian Civil and Administrative Tribunal Act 2013 s 60

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Dental Board of Australia v Cooper [2021] SACAT 51

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Health Care Complaints Commission v Townsend [2016] NSWCATOD 118

Medical Board Australia v Murphy [2020] SACAT 112

Prakash v Health Care Complaints [2006] NSWCA 153

Mr S Ward, Piper Alderman Lawyers, appeared for the complainant

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Facts and details that may lead to the identification of the victim of the alleged harassment have been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1).

1. The Complainant, the Nursing and Midwifery Board of Australia ('Board') is a National Board for the purposes of the Health Practitioner Regulation National Law Act 2010, Schedule 2 of which contains the Health Practitioner Regulation National Law ('National Law').
2. The respondent is a registered nurse. He was first registered to practice in 2005. His registration was suspended by way of immediate action taken on 27 November 2019.
3. The Board has referred to the Tribunal pursuant to s 193 of the National law a matter about the respondent, namely the Board's belief that the Respondent has behaved in a way that constitutes unprofessional conduct.
4. The initiating application raises four grounds with particulars spread over 52 paragraphs. In essence the four grounds are as follows:

4.1. The respondent contravened conditions imposed on his registration. These conditions related to drug and alcohol screening and provision of information relating thereto.

4.2. The respondent harassed threatened and made inappropriate abusive behaviour to his neighbour.

4.3. The respondent was convicted of a criminal offence, namely disturbance of the peace.

4.4. The respondent did not, within seven days of the date of the criminal conviction, give the Board notice in accordance with ss 130(1) and 130(3)(a)(ii) of the National Law. The Board accepts the applicant did make it aware of the conviction shortly outside that seven-day period.

1. The facts giving rise to the complaint were ultimately not in issue (the matter did proceed to full hearing on the basis that it would be defended, and all but one witness would be required for cross examination, but the facts were admitted at the hearing and only one witness was required to give oral evidence). The respondent was self-represented. The Tribunal undertook a detailed process of going through the affidavit material filed by the Board at the hearing (the respondent having advised that he had not read the affidavits as 'I won't be reading them. I'm wasting my time basically reading that sort of crap'). Following that exercise, the respondent admitted the facts in the affidavits, with one exception going to the question of whether he was still engaged in behaviour that disturbed the peace of other neighbours, that not being relevant to the complaint itself, but relied upon by the Board as being relevant to any orders the Tribunal might make. The respondent, at the end of the first day of hearing refused to answer questions in cross examination and indicated he would not further participate in the hearing. The Tribunal convinced him to return on the second day, during which he again refused to answer questions, ripped up one of the exhibits, and stormed off. The Tribunal tried to get him to come back into the hearing room, unsuccessfully; adjourned and sent him text messages advising him of the adjourned time; and on his failure to come back to the Tribunal gave him an opportunity to make written submissions. The respondent filed written submissions that he prepared himself, which referred back to his earlier detailed response.

1. The Board imposed conditions on the respondent's registration on 4 October 2019.
2. Amongst other things, these included (without setting them out word for word):

7.1. Conditions 2 and 3 relating to the commencement of a random urine drug screening (UDS).

7.2. Condition 4 relating to confirmation to AHPRA as the understanding of the requirements of the UDS protocol, and provision of an approved form that gives the details of current substances that have been prescribed, administered or approved.

7.3. Condition 7 relating to provision to AHPRA of certain medical information.

7.4. Condition 8 relating to the provision to AHPRA of the contact details of a senior person at each current place of practice.

1. It is not in dispute that the respondent did not comply with the conditions. He did not call the number to arrange the UDS testing on a series of some 18 dates that he was required to attend for screening, and did not provide urine samples on those dates. He did not fill in the required forms, and did not provide AHPRA with the relevant information. There is no doubt he was aware of the conditions because he sent an email to AHPRA acknowledging receipt. He was given follow up communications with the details of how to comply, and he acknowledged receipt of that correspondence. At the hearing he admitted understanding what the requirements were and said:

Yes, I understand all that, to save some time, I was working casual nightshift as a registered nurse, doing 10 hour night shift so I was really overwhelmed basically, and I wasn't earning a lot of money even doing that so initially I wouldn't maybe $600 on my first shift and then shift two and three would be heavily taxed so that the money I was getting my hands with barely enough to cover from hand to mouth, from week to week for two years basically so I was extremely stressed and fatigued...

2. The respondent argued that, because he had lodged an appeal with the Tribunal on 5 November 2019 against the imposition of the conditions that he didn't need to comply with them, and said 'from my understanding of due process any formalising those conditions be after a hearing not before the hearing and that would only be fair on that person because I mean look at the conditions that they are imposing and require me to put my whole career in jeopardy basically by contacting every Director of Nursing at every hospital that I work so my name would be mud in this whole state basically... I couldn't believe what they were asking me to do and give them contacts of someone's nursing career in a place where he lived and worked his whole life basically.' That argument has no legal merit because in the circumstances here the effect of s 36 of the South Australian Civil and Administrative Tribunal Act (SACAT Act) is that an application for review does not operate as a stay unless the Tribunal so orders, and no stay was applied for. Leaving aside the legal merits, the respondent was informed by correspondence from the Board that he needed to comply with the conditions notwithstanding his application for a review and moreover:

9.1. He did not serve the Board with his application for review (though the Board became aware of it).

9.2. After some communications about the non-payment of the fee for the review, he withdrew his review application by email dated 27 December 2019.

9.3. He said the reason he did not comply with the conditions included that he was worried about the effect they might have on his ability to continue to practice and earn an income.

9.4. At one point he admitted that he understood he needed to comply with conditions unless he had a stay from SACAT,[1] though at other points he said he wasn't thinking rationally at the time and 'had to put bread on the table'.[2]

1. His argument accordingly provides no defence.
2. Ground 1 is made out.
3. The failure to comply with the conditions is a serious matter. Conditions should be scrupulously observed.[3] They are there for the protection of the public.
4. Here the conditions were imposed after an in-person health assessment of the respondent was undertaken in February 2019 and a report obtained from Professor Baigent, with a supplementary report in June 2019. The respondent had used methamphetamines on occasions in the past; had tested positive for methamphetamines in April 2019 (though there was an issue as to whether the usual procedures in relation to specimens had been followed). There were aspects of his presentation consistent with methamphetamine use. Professor Baigent believed that the respondent had a Cannabis Use Disorder which was described in the further report as 'more than mild'. Dr Baigent felt that the respondent's history given was unreliable. He said in that further report:

There are no safe or allowable levels of psychoactive cannabis (tetrahydrocannabinol as the active ingredient) regarded as acceptable in performing demanding duties... I feel that unless he has a negative reading for cannabis (urine, saliva or hair) I cannot say that he would not put patients under his care at risk of some harm. He expressed similar views to me not wanting to practice if he thought he had cannabis in circulation. Once absence is achieved, I do not have any concerns about his ability to practice. Given his state of dependence, he needs to demonstrate a period of abstinent control over his use and then monitoring for use for a period to safely work, unsupervised in the future.

5. In his evidence the respondent admitted to drug use and that the taking of drugs may have affected his ability to properly function at work.
6. We find that the failure to follow the conditions amounted to professional misconduct within the meaning of s 5 of the National Law.

1. Although distinct events, there is some overlap between grounds 2 and 3. Ground 2 relates to the allegations of stalking harassment and intimidating behaviour. Ground 3 is a subset of Ground 2 relating to events that took place on 16 December 2019 when the respondent was yelling and shouting at the apartment premises and was arrested by police.
2. The respondent pled guilty to one count of disturbing the peace on 16 December 2019 and was convicted (but discharged without penalty). The sentencing remarks referred to the matters put in mitigation which included that the respondent had, two weeks before the incident had his nursing registration suspended by AHPRA, and was also upset that a close friend had committed suicide.[4]
3. The facts leading up to the incident the subject of the criminal charge are set out in an affidavit of a neighbour 'X' and corroborative evidence given by another neighbour 'Y' who gave oral evidence at the Tribunal. The facts surrounding the criminal charge itself are further set out in affidavits filed by a number of police officers. We have avoided referring to their names to preserve confidentiality, given the request for a confidentiality order by the complainant (the respondent had been given unredacted copies of all affidavits and cross-examined witness Y at the hearing, having stated that he did not require witness X or the police officers for cross examination and did not contest their version of events).
4. The neighbour 'X' was a single woman living alone at the block of units in which the respondent lived, living in the unit immediately upstairs. She was disturbed by extraordinarily loud music, banging and shouting from the unit below. She found a note on her car, written on Northern Adelaide Local Health Network letterhead containing the respondent's name, date of birth and APHRA/NMBA registration number asking her for dinner. X did not recognise the number and called it leaving a message, and then became aware the respondent was the same person she had complained about. The respondent then repeatedly called her number and left various phone messages (about 15) and notes. X made clear she had a boyfriend and was not interested. The content of the communications oscillated between 'Will you marry me', declarations of love and making apologies, to calling her a 'fucking bitch', 'call me back you cunt', banging on the ceiling, yelling and screaming. A neighbour reported hearing things being shouted like 'come down and suck my cock'. X feared for her safety, and made a statement to police on 15 December. On 16 December she reported slamming of doors, the respondent running out and calling her a 'fucking bitch' over and over. Police attended, with 3 patrols, but he would not let them in. He began hammering on the ceiling. Most of the police left, with two hiding around a corner, so that when the respondent came out of his unit he was arrested. As he was arrested he looked out at the respondent and said 'you are fucked'. The respondent was also given a stalking caution.[5]
5. The Tribunal finds that the conduct of the respondent was harassing and intimidating to X.
6. The conduct did occur in the respondent's personal life, rather than the course of his practice.
7. The Code of Conduct for Nurses deals with bullying and harassment, though in a work setting rather than a private setting. Clause 1.2 appears to extend beyond a work setting in relation to lawful behaviour:

1.2 Lawful behaviour > > Nurses practice honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must: > > ...

1. Not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.

1. Professional misconduct is defined in s5 of the National Law as:

professional misconduct , of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. There is a question as to whether the conduct complained of was a 'one off' or part of a pattern of behaviour. That is not an element of the complaint itself but might be relevant to the question of what orders should be made. The applicant called evidence from Y who gave evidence that the respondent engaged in abusive behaviour to subsequent residents of the apartment occupied by X as well as other behaviour which gave rise to ongoing nuisances. The respondent partially admitted these matters,[6] though did not admit they were continuing to this day. Further, the Board tendered communications from the strata corporation which refer to ongoing complaints. Whilst those complaints from the strata body are hearsay, the respondent did send an email to the Strata Corporation referring to a possible intervention order, apologising for his behaviour, and referring to the suicide of a friend as an explanation. When cross examined the respondent became agitated, refused to answer some of the questions on the topic when challenged, and ripped up the documents he was shown. Even if we put the hearsay evidence to one side, there was direct evidence from the neighbour Y combined with admissions from the respondent to lead us to find that the pattern of abusive behaviour was not a 'one off' or isolated event.
2. We accept that not every crime or breach of the peace would amount to professional misconduct and each case needs to be determined by looking at the particular facts and circumstances. Noteworthy is the fact that the respondent's advances were unwelcome, and when clear that they were unwelcome his behaviour escalated. It is also relevant that NAHLN letterhead was used for some of the communication so that X would know that the respondent was a nurse.
3. We are satisfied that the conduct referred to in Grounds 2 and 3 amounts to professional misconduct within the meaning of s 5 of the National Law.[7]
4. It is concerning that the behaviour is continuing.
5. We are concerned as to the level of insight that the respondent has about the conduct. Even though he pleaded guilty in the Magistrates Court the responses filed in the Tribunal alleged that X fabricated and exaggerated the incident, and asserted that X 'wilfully and maliciously' retaliated by blame shifting, exaggerating or simply manipulating any accurate legitimate genuine evidence and reality based version of events to suit her own 'narrative of personal convenience'. Despite not wanting to contest X's affidavit at the hearing or seek to ask her questions, at a directions hearing only the week before the hearing itself the respondent advised that he wished to have all witnesses other than Professor Baigent available for cross examination. This meant that X (as well as the other witnesses) had to go through the stress and inconvenience of preparing and for and attending the Tribunal even though they were ultimately not required. The respondent also refers to number of communications directed at the solicitors for the respondent in dealing with these allegations that contained irrelevant material that did not address the concerns raised.[8]

1. Section 130 of the National Law obliged the respondent to notify the Board within 7 days of becoming aware that he had been found guilty or convicted of an offence punishable by imprisonment. The offence giving rise to the conviction was one attracting a maximum term of imprisonment of three months. The respondent was obliged to advise the Board of his conviction by 23 March 2020 but did not do so until 27 March 2020.
2. Given the relatively short delay, we are of the opinion that the conduct does not amount to professional misconduct. It does involve a contravention of the National Law and we find it amounts to unprofessional conduct. Of itself, and in isolation, this matter would not necessarily have attracted a sanction being imposed by the Tribunal. The orders we propose below rely more on grounds 1, 2 and 3.

1. In Craig v Medical Board of South Australia,[9] the Full Court set out the purpose of disciplinary orders. Doyle CJ said:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. > > ... > > In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. > > ... > > In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.

2. Given the content of Dr Baigent's report and the respondent's admitted drug use, the conditions that were attached to his registration were both appropriate and important for the protection of the public.
3. The failure to abide by those conditions was deliberate and not satisfactorily explained other than by reference to the respondent's concern about the effect that they would have on his employment.
4. The way in which the respondent initially fought the complaint involved an attack on X and a lack of contrition or remorse for the events that occurred. The police affidavits refer to his dismissive attitude when being interviewed and receiving the stalking caution, his blaming of the victim, and his assertions that he was a victim himself. Similar aggressive behaviour continued after the incidents with X. He filed response documents in the Tribunal denying the elements of the complaint (but then admitted the facts at the hearing).
5. His conduct at the hearing itself caused us to have concerns over his fitness to practice. That conduct included focusing on his phone in the hearing rather than concentrating on the hearing, refusing to answer questions, and ripping up an exhibit.
6. Whilst there were times and some communications in evidence that are consistent with the respondent having some remorse over his conduct, at other times his conduct indicated a lack of remorse or insight, including the way in which he chose to ignore the conditions on his registration, and his suggestions that his 'human rights' were infringed by the Board suspending his registration after the non-compliance with the conditions was brought to his attention and he still refused to comply.
7. In our opinion the cancelation of the respondent's registration is required to maintain public confidence in the nursing profession, and it is appropriate that further orders be made disqualifying the respondent from applying for registration for a period of three years from the date of this order, and from providing any health service for a period of three years.
8. We encourage the respondent to obtain psychological treatment and appropriate assistance in order to combat his substance use. Whilst a matter for the Board, we envisage that these issues will need to be addressed if the respondent wishes to apply for re-registration in the future.

1. The Tribunal decides pursuant to s 196(1) of the National Law that:

1.a. The respondent has behaved in a way that constitutes professional misconduct.

1.b. The respondent has behaved in a way that constitutes unprofessional conduct.

2. The Tribunal imposes the following disciplinary action:

2.b. The registration of the practitioner is cancelled.

2.c. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 3 years from the date of this order.[10]

2.d. The respondent is prohibited from providing any health service and from using the title nurse for a period of 3 years from the date of this order.

1. The respondent must pay the costs of the Board to be agreed or fixed by the Tribunal.
2. Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act the publication of evidence given before the Tribunal or the contents of documents produced to the Tribunal that identify or tend to identify the victim of the harassment alleged and found in this case is prohibited.

1. [3] Prakash v Health Care Complaints [2006] NSWCA 153 at [74]; Health Care Complaints Commission v Townsend [2016] NSWCATOD 118 at [79]; Medical Board Australia v Murphy [2020] SACAT 112 at [62]- [64]; Dental Board of Australia v Cooper [2021] SACAT 51 at [34].

[4] A clerical mistake was made in the original order dated 9 February 2022. A slip rule was issued on 4 April 2022 amending paragraph 17.

[5] This paragraph was amended as per the slip rule issued on 4 April 2022.

[7] This paragraph was amended as per the slip rule issued on 4 April 2022.

[8] This paragraph was amended as per the slip rule issued on 4 April 2022.

[9] [2001] SASC 169; (2001) 79 SASR 545. See also Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630.

[10] This paragraph was amended as per the slip rule issued on 4 April 2022.